Proposed Newbury Street cannabis shop sues over zoning-board rejection

A company that wants to open a marijuana mart on Newbury Street between Gloucester and Hereford this week sued the Zoning Board of Appeal over its decision to deny its request for permission within steps of two other cannabis concerns also proposed for the area.

In its suit, filed in Suffolk Superior Court, Ember Gardens Boston says the board's unanimous rejection of its plans for 297 Newbury St. on June 22 was due to "ostensibly political purposes" and was "arbitrary and capricious" to boot and so a judge should annul the board decision and order the board to approve the proposal so that it can go to the state Cannabis Control Commission.

The ZBA’s decision was arbitrary, among other reasons, because the ZBA has approved other Cannabis Establishments at locations with far less amenities and at sites inferior to the Premises.

The complaint does not elucidate on the political pressure supposedly brought to bear on the board.

At the hearing, the Mayor's Office of Neighborhood Services, City Councilor Kenzie Bok and state Rep. Jay Livingstone all urged the board to reject the proposal, not because they oppose marijuana - all have supported other marijuana shops in the area - but because the proposed shop would be the only one right next to a residential building. The Neighborhood Association of the Back Bay, which has "not opposed" other cannabis shops, opposed this one for the same reason.

At the hearing, Board Chairwoman Christine Araujo asked Ember consultant Chris Tracy and Ember Gardens co-founder Shane Hyde to give her a "compelling reason" to grant approval when there are already two other nearby establishments with city approval now awaiting the permission they need from the state.

The city has an ordinance that supposedly bars marijuana establishments from being closer than one half mile from each other, but from the very beginning, City Hall has acted pretty much as if that ordinance does not exist and routinely sent close-by applicants to the zoning board.

Tracy said that, to start, if there's one place that ordinance makes no sense and deserves a zoning-board exception, it's Newbury Street, which is "not just the retail hub of city of Boston but really New England in general," with vast amounts of both local and visitor foot traffic that can easily support multiple nearby cannabis shop - just like it can support multiple hair salons.

He continued that Ember Gardens is an "equity" applicant because most of its founders or members of their families have arrest records for marijuana possession, and such applicants are supposed to be encouraged. And, Hyde said, his proposal is fundamentally different from the others because his group is not proposing something akin to a convenience store but more like an appointment-only boutique. He added that as part of its proposed 10 a.m. to 8 p.m. hours, the last hour would be reserved for just Back Bay residents.

Araujo, though, asked why that location specifically. "Newbury Street is not a block long, and I need to understand what were the options on Newbury, on Boylston and other options you have explored so you're not within a half mile."

Hyde said the problem along the rest of Newbury is a separate state regulation that bars marijuana concerns within a certain distance of schools, that the proposed location is in the high-volume part of the street and that Boylston Street is really a different neighborhood than Newbury.

Bok started by stating her constituents along Newbury are a bit frustrated and wonder if the city's half-mile buffer has any meaning anymore. But more specifically, she said, "I don't know of another location that shares a wall with a large residential development."

Livingstone agreed, saying he's not opposed to marijuana shops in general, but that 297 Newbury is just "the wrong location" because of its shared alley with a residential building.

"It's a terrible location," Elliott Laffer, president of the Neighborhood Association of the Back Bay, said.

The Boston Cannabis Board approved the proposal in February.

Watch the hearing:

Complete Ember Gardens complaint (21.6M PDF).